The Companies (Amendment) Bill, Bill No. 233 of 2021 (the "Bill") proposed various amendments to the Companies Act, Cap. 386 of the Laws of Malta (the "Companies Act"). An article on this Bill can be found here.
This Bill became law by means of the Companies (Amendment) Act, Act LX of 2021 (the "Act"). The differences between the Bill and the Act are not extensive and consist mainly of clarifications. The more notable adjustments include:
- the possibility of indicating a service address instead of a residential address – which in terms of the Bill appeared to only apply to directors – also applies, according to the Act, to shareholders and the company secretary;
- the requirement for directors to declare to the Registrar whether they are aware of any circumstances which could lead to their disqualification triggers upon their being appointed directors, rather than prior to being appointed; and
- the Act clarifies that the 14 day period for a company to notify the removal of an officer at the Registrar's request on the basis of disqualification or lack of a licence under the Company Service Providers Act triggers from the date of removal of the director and not earlier as appeared to be the case under the original text of the Act.
Article 1(2) of the Act provides that the provisions of the Act shall come into force on the date/s stipulated by the Minister responsible for the registration of commercial partnerships. The Companies (Amendment) Act Commencement Notice L.N. 417 of 2021, established that, as of 30 October 2021, the provisions of Articles 2(a), 3(b), 5, 6, 7 and 9 came into force. These provisions primarily cover:
- the definition of "electronic means";
- the requirement of inclusion, into the Memorandum of Association (the "Memorandum") of a company, of the electronic mail address of that company;
- the requirement for persons being appointed to act as directors (of both private and public companies) to personally sign the Memorandum consenting to so act or, alternatively, to sign and deliver to the Registrar for registration a consent in writing to so act;
- the requirement that newly appointed directors must declare to the Registrar, in the prescribed form, whether they are aware of any circumstances which could lead to a disqualification from appointment or to hold office as a director of a company under the Companies Act or in another EU Member State (a "MS");
- the Registrar's duty to require a company to remove an officer who is disqualified or does not hold a licence under the Company Service Providers Act (the "CSP Act"), the Company's obligation to comply with such request, and the Registrar's obligation to file a court application requesting removal should the company not comply;
- the additional disqualification ground for directors or company secretaries if they hold such offices as company service providers in terms of the CSP Act without having obtained the necessary authorisation by the Malta Financial Services Authority; and
- additional duties and powers of the Registrar such as (to mention but two) (i) that of taking such steps and requiring such information or documentation as deemed necessary to ascertain individuals' identification and correctness of the information submitted to him before registering new companies or returns and (ii) that of providing competent authorities and subject persons (as defined in the Prevention of Money Laundering and Funding of Terrorism Regulations (the "PMLFTR")), with full access to the website maintained by the Registrar, including, but not limited to, access by an application programming interface.
It is as yet unclear when the remainder of the Act will come into force, but company service providers and company officers should keep a sharp eye out for this in order to ensure full compliance with the remainder of the provisions once these do come into force.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.